Miami Herald - Tuesday, September 24, 1985
Stephen J. Hedges, Herald Staff Writer

Judge Brian Kay, after ordering the test, said he will require it for defendants appearing before him on charges involving illegal sexual acts.

Kay's requirement for the testing of Acquired Immune Deficiency Syndrome, a disease that destroys the body's immune system, was quickly labeled unconstitutional by a civil rights activist.

"I'd term it unfortunate and uninformed," said Allan H. Terl, chairman of the Broward County Chapter of the American Civil Liberties Union. "It's gross violation of a person's right to privacy."

Marty Lomica, arrested July 18 on charges of a lewd and lascivious act and possession of cannabis, was the first subject of Kay's AIDS test requirement. Lomica and another man were arrested on Northeast Sixth Terrace after a patrol officer saw them engaged in masturbation.

Kay, in a surprise ruling, told Lomica he would withhold adjudication if he agreed to the test and paid $200 in court costs. Lomica's attorney, Richard Leydig, said his client will not appeal Kay's decision.

"He doesn't object at all to the test," Leydig said. "But I don't think what (Kay) did will hold up."

Kay said his legal and medical research prove that the AIDS test is a "reasonably related sanction." The test will inform defendants that they have the disease, he said, as well as protect their future sex partners.

"This is a life-threatening disease," Kay said during an interview in his chambers. His action, he said, "is not something done based on press or hysteria. It's based on something I think is reasonable and appropriate."

Kay expects to require defendants -- many of them prostitutes -- to take the test at their expense. The test results would become a part of their public court file, Kay said.

Civil and gay rights activists said Kay's requirement is naive. Gays are considered a high risk AIDS group.

Terl, of the American Civil Liberties Union, said the test may affect a defendant's future attempts to acquire insurance.

John Boring, AIDS program coordinator for the National Gay Rights Task Force, said the requirement may violate a federal Food and Drug Administration guideline.

That guideline, carried as a label requirement for the AIDS test, states that it is "inappropriate to use the test as a screen for AIDS or as a screen for members of groups at increased risks in the general population."

Boring also said the common test to detect HTLV III, the AIDS virus, only proves a person has been exposed to the virus. Nationally, about 20 percent of those exposed to the virus are eventually found to have AIDS.

"Certainly, it's an inappropriate use of the test," Boring said. "I think somebody ought to be able to choose for themselves whether to have the tests."

And Boring said there is no risk of the AIDS virus being transmitted through masturbation, the behavior for which Lomica was arrested.
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